James v. State

• Decision Date: 26 September 1991
• Docket Number: No. PC-88-1053,PC-88-1053
• Citation: 818 P.2d 918
• Parties: Terrance A. JAMES, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 918

818 P.2d 918

Terrance A. JAMES, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-88-1053.

Court of Criminal Appeals of Oklahoma.

Sept. 26, 1991.

An Appeal from the District Court of Muskogee County; Hardy Summers, District Judge.

Terrance A. James, Petitioner, has appealed to this Court from an order of the District Court of Muskogee County denying his application for post-conviction relief in Case No. CRF 83-64. A direct appeal of Petitioner's conviction was filed with this Court wherein we affirmed the conviction and death sentence. See James v. State, 736 P.2d 541 (Okl.Cr.1987). Petitioner then filed a Writ of Certiorari with the Supreme Court of the United States which was denied. See James v. Oklahoma, 484 U.S. 970, 108 S.Ct. 467, 98 L.Ed.2d 406 (1987). Petitioner's subsequent Application for Post-Conviction relief was filed in the District Court of Muskogee County in January 1988. Hearings were held through the months of April, May and July, with the trial court denying the application in November 1988. It is this denial which the Petitioner appeals. AFFIRMED.

Don J. Gutteridge, Jr., Oklahoma City, for petitioner.

Robert H. Henry, Atty. Gen., Wellon B. Poe, Asst. Atty. Gen., Oklahoma City, for respondent.

OPINION DENYING POST-CONVICTION RELIEF

LUMPKIN, Vice Presiding Judge.

Petitioner has appealed to this Court from an order of the District Court of Muskogee County denying his application for post-conviction relief in Case No. CRF 83-64. Petitioner raises five allegations of error: 1) the jury was not properly instructed as to the aggravating circumstance that the murder was especially heinous, atrocious and cruel; 2) the failure to receive the proper instruction necessitates a modification of his death sentence to life imprisonment; 3) insufficient evidence to support the aggravating circumstance that the Petitioner committed the murder while serving a sentence of imprisonment for conviction of a felony; 4) ineffective assistance of trial counsel; 5) denial of a state funded psychiatrist to assist Petitioner at trial and at post-conviction.

A direct appeal of Petitioner's conviction was filed with this Court wherein we affirmed the conviction and death sentence. See James v. State, 736 P.2d 541 (Okl.Cr.1987). Petitioner then filed a Writ of Certiorari with the Supreme Court of the United States which was denied. See James v. Oklahoma, 484 U.S. 970, 108 S.Ct. 467, 98 L.Ed.2d 406 (1987). Petitioner's subsequent Application for Post-Conviction relief was filed in the District Court of Muskogee County in January 1988. Hearings were held through the months of April, May and July, with the trial court denying the application in November 1988. It is this denial which the Petitioner appeals.

Three of Petitioner's allegations of error: insufficient evidence to support the aggravating circumstance that the murder was committed while the defendant was imprisoned for a felony, ineffective assistance of trial counsel and denial of a psychiatrist at trial ¹ are issues which have been, or could have been, raised on direct appeal. The doctrine of res judicata bars consideration in post-conviction proceedings of issues which have been, or which could have been, raised on direct appeal. Coleman v. State, 693 P.2d 4, 5 (Okl.Cr.1984); Castleberry v. State, 590 P.2d 697, 703 (Okl.Cr.1979). Petitioner is therefore barred from asserting any claims previously raised, or any claims which could have been raised, in his direct appeal. 22 O.S.1981, § 1086. It is not the office of the Post-Conviction Procedure Act, 22 O.S.1981, § 1080 et seq., to provide a "second appeal under the mask of post-conviction application." Ellington v. Crisp, 547 P.2d 391, 393 (Okl.Cr.1976).

In his first allegation of error, Petitioner alleges that his death sentence must be vacated and his sentence modified to life imprisonment because the aggravating circumstance of "especially heinous, atrocious or cruel" was applied in an unconstitutional manner, pursuant to Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). ² That decision constitutes an intervening change in the law which did not exist at the time of Petitioner's previous appeals. Therefore, we find sufficient reason exists for not previously asserting this allegation of error and will address the merits of Petitioner's contention. 22 O.S.1981, § 1086; Jones v. State, 704 P.2d 1138, 1140 (Okl.Cr.1985); Stewart v. State, 495 P.2d 834, 836 (Okl.Cr.1972).

In Maynard v. Cartwright the United States Supreme Court found that defendant Cartwright's death sentence was invalid because the aggravating circumstance that the murder was "especially heinous, atrocious or cruel" was unconstitutionally vague as applied in that case. Specifically, the Court held that the jury's finding that the murder was "especially heinous, atrocious or cruel" violated the previous dictates in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), which required that the discretion of the sentencer be limited by some comprehensible standards. The lack of limitations and guidance provided in the instruction to the jury on this aggravating circumstance lead the Supreme Court to affirm the Tenth Circuit's previous vacation of the death sentence. The jury in Petitioner James' trial was given the same instruction as in the Cartwright case. Although a correct instruction at the time, we now recognize it was insufficient as it failed to properly channel or limit the sentencer's discretion in determining whether to impose a death sentence.

While the improper instruction causes the aggravating circumstance of "especially heinous, atrocious or cruel" to fail it does not necessitate an automatic modification of the death sentence to life.

In addition to finding that the murder was "especially heinous, atrocious or cruel" the jury found beyond a reasonable doubt that two other aggravating circumstances existed: the murder was committed by the defendant while serving a sentence of imprisonment on conviction of a felony and there existed a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

When an aggravating circumstance is found to be invalid, this Court has the authority to review any remaining aggravating circumstances and the mitigating evidence to determine the validity of the death sentence. Castro v. State, 745 P.2d 394 (Okl.Cr.1987), 749 P.2d 1146 (Okl.Cr.1987) (Opinion on Rehearing), cert. denied, 485 U.S. 971, 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988); Stouffer v. State, 742 P.2d 562, 563 (Okl.Cr.1987), cert. denied 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988). Title 21 O.S.Supp.1986, § 701.13(C) and § 701.13(F), authorize this Court to make a sentence review which includes factual substantiation of the verdict and a determination of the validity of the sentence. A weighing of the aggravating circumstances versus mitigating factors is implicit to such review.

Contrary to Petitioner's argument, we are not prohibited from such review under Cartwright. The Supreme Court and the Tenth Circuit refused to reweigh the evidence when one aggravating circumstance failed only because of this Court's policy as it then existed of refusing to reconsider the death sentence on appeal when one aggravating circumstance was found invalid. In fact, the Supreme Court in Cartwright recognized our new policy of not automatically setting aside a death sentence when one of several aggravating circumstances is found to be invalid and stated that the significance of that decision was a matter for the state courts to decide.

The application of such a harmless error analysis to second stage sentencing errors has been approved by the Supreme Court in Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988); Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378 78 L.Ed.2d 187 (1983); Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) and Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).

The Petitioner also argues that this Court's harmless error analysis and reweighing of the evidence violates his right to have a jury set his sentence, pursuant to 22 O.S.1981, § 926. Section 926 provides that the jury may, and upon request of the defendant shall, assess the punishment in the first instance. This provision is activated only upon the defendant's specific request for jury sentencing. Such a specific request made by Petitioner James is not reflected in the record.

The provisions of 21 O.S.Supp.1989, §§ 701.10(A) and 701.10(B), require a sentencing proceeding before the same jury in the initial trial proceedings unless waived by the defendant. If the jury sentencing is waived, the sentencing shall be conducted before the court.

We have previously held that Section 926 is to be read in conjunction with 21 O.S.1981, § 701.7 et seq., 21 O.S.Supp.1985, § 701.13, and 22 O.S.1981, § 1066, providing for this Court's appellate...